Invalidating an irrevocable trust
The Department of Labor has advised that whether a "top hat" or excess benefit plan is funded or unfunded depends upon all of the facts and circumstances.
(b) The entitlement of a Plan participant or his or her beneficiaries to benefits under the Plan(s) shall be determined by Company or such party as it shall designate under the Plan(s), and any claim for such benefits shall be considered and reviewed under the procedures set out in the Plan(s).
Any assets held by the Trust will be subject to the claims of Company's general creditors under federal and state law in the event of Insolvency, as defined in Section 3(a) herein.
ALTERNATIVES -- SELECT ONE OR MORE PROVISIONS, AS APPROPRIATE.
(e) COMPANY, IN ITS SOLE DISCRETION, MAY AT ANY TIME, OR FROM TIME TO TIME, MAKE ADDITIONAL DEPOSITS OF CASH OR OTHER PROPERTY IN TRUST WITH TRUSTEE TO AUGMENT THE PRINCIPAL TO BE HELD, ADMINISTERED AND DISPOSED OF BY TRUSTEE AS PROVIDED IN THIS TRUST AGREEMENT.
NEITHER TRUSTEE NOR ANY PLAN PARTICIPANT OR BENEFICIARY SHALL HAVE ANY RIGHT TO COMPEL SUCH ADDITIONAL DEPOSITS.